A hate crime is not a criminal offence as such under French law, and instead the concept of “hate crime” refers to a “base” criminal offence, which can be either a misdemeanour or a crime, to which are added aggravating circumstances linked to the hate motive of the offence. When a person is charged with a criminal offence, they are called “the defendant” and the criminal charges are examined in criminal proceedings.
Aggravating circumstances
In France, the Criminal Law establishes that any misdemeanour or crime committed with a biased motive towards an individual or a group due to the victim‘s actual or assumed race, nationality, ethnicity religion, sex, gender identity or sexual orientation may be considered to have aggravating circumstances. This means that the person is charged with the criminal offense as, for example, murder, bodily harm or property damage, but during the trial the court can take into account the aggravating circumstances, namely, the bias motive, when adopting the decision. If the court agrees that there was an aggravating circumstance, the penalties incurred will be more severe. In general, aggravating circumstances can be applied to all misdemeanours and crimes established in the Criminal Law.
example A person with a dark skin has been attacked and seriously harmed with a biased motive due to the person’s race. The perpetrator will be charged for the criminal offence of physical assault. However, because of the biased motive, the perpetrator may be sentenced to a more severe penalty than the one normally provided for the offence of physical assault.
However, the court can also not take into account the aggravating circumstances but recognize that in addition to the particular offense committed, as, for example, bodily harm, the person has also committed another crime, namely, incitement to discrimination, hatred or violence.
Incitement to discrimination, hatred or violence
If a person has committed a crime with a motive to incite or provoke discrimination, hatred or violence against an individual or group of people on the grounds of that individual’s gender, sex, gender identity, sexual orientation, disability, religion, origin, race, ethnicity or nationality and a substantial harm has been caused thereby, it may be charged with two (or more) criminal offenses simultaneously: for the “base” offense done, for example, murder, bodily harm or property damage, and also for incitement or provocation to discrimination, hatred or violence, which is a substantive criminal offense, too.
In such situation, aggravating circumstances are not additionally considered. It is the public prosecutor and not the victim who decides whether the defendant will be charged with a “hate crime” (the “base” offence and aggravating circumstances linked to the hate motive) or with two autonomous criminal offences (the “base” offence and the incitement to discrimination/hatred/violence which is generally a misdemeanour)
French Law distinguishes two situations concerning the incitement or provocation to discrimination/hatred/violence:
- The incitement took place in a public place: if the perpetrator’s words or writings have incited someone to commit a crime or misdemeanour (such as a hate crime), the perpetrator may be sued as an accomplice of this criminal offence. If the perpetrator incited to discrimination/hatred/violence while committing another offence, the perpetrator may be sued for direct incitement (a misdemeanour) and for the base offence (physical assault, property damage, murder, attempted murder etc.).
- The incitement took place in a private place: If during the hate crime the perpetrator in any way has incited discrimination, hatred or violence, the perpetrator may be sued for incitement to discrimination, hatred or violence (a contravention) and for the hate crime itself.
important The competent authorities and court have to thoroughly evaluate each hate crime case individually in order to decide whether it had a biased motive as an aggravating circumstance or whether it had a motive to incite discrimination, hatred or violence.
example A homosexual person’s car was seriously damaged and covered with insulting statements with a motive to incite discrimination, hatred and violence against homosexual persons in society. This could either be considered a hate crime (property damage + aggravating circumstance) or a combination of two criminal offences (property damage + incitement to discrimination, hatred, violence).
Hate speech
Hate speech is not a hate crime, as it has a different structure from it. Hate speech is an expression which, incites or provokes hate, discrimination or violence towards an individual or group of people, based on certain attributes such as, for example, race, ethnicity, nationality, gender, sexual orientation, beliefs or disability.
Unlike hate crime, hate speech does not have the element of the “base offence”. That means that if the hate speech would not contain the bias or intolerance motive, there would be no criminal offence to be punished, only an expression of a person. However, hate speech and hate crimes have certain similar characteristics, namely, both are motivated by hatred or intolerance against individuals or groups based on certain attributes. Also, these two notions are linked to each other because the definition of “hate crime” includes hate speech.
Indeed, a hate crime will be qualified as such when during a criminal offence, the perpetrator publicly expresses hate or violence based on the victim’s ethnicity, religion or other characteristics. Thus, in France hate speech is often mentioned by public authorities and individuals in the context of hate crimes.
The French Law on the Freedom of the Press distinguishes hate speech as a substantive criminal offence. For the criminal offence to be considered hate speech, it must fit the description of hate speech outlined in Article 24 of the Law on the Freedom of the Press.
Read more about hate speech and the differences between hate crimes and hate speech.